(PC) Ransom v. Herr ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN E. RANSOM, No. 2:20-CV-1209-DJC-DMC-P 12 Plaintiff, ORDER 13 v. and 14 HERR, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the Court is Defendants’ unopposed motion to revoke Plaintiff’s 19 in forma pauperis status, ECF No. 43. Also before the Court are: (1) Plaintiff’s motion to stay, 20 ECF No. 40; (2) Plaintiff’s motion for leave to amend, ECF No. 46; (3) Plaintiff’s request for 21 judicial notice, ECF No. 50; and (4) Plaintiff’s request for screening, ECF No. 51. For the 22 reasons discussed below, the undersigned finds that Defendants’ motion should be granted and 23 that, as a result, Plaintiff’s motions are rendered moot. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as 2 follows: 3 In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or 4 detained . . ., brought an action . . . in a court of the United States that was dismissed on the ground that it is frivolous, malicious, or fails to state a 5 claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 6 Id. 7 8 Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the 9 reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma 10 pauperis unless the imminent danger exception applies. The alleged imminent danger must exist 11 at the time the complaint is filed. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 12 2007). A prisoner may meet the imminent danger requirement by alleging that prison officials 13 continue with a practice that has injured him or others similarly situated in the past, or that there 14 is a continuing effect resulting from such a practice. See Williams v. Paramo, 775 F.3d 1182, 15 1190 (9th Cir. 2014). 16 Dismissals for failure to exhaust available administrative remedies generally do 17 not count as “strikes” unless the failure to exhaust is clear on the face of the complaint. See 18 Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). Dismissed habeas petitions do not count 19 as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Where, 20 however, a dismissed habeas action was merely a disguised civil rights action, the district court 21 may conclude that it counts as a “strike.” See id. at n.12. 22 When in forma pauperis status is denied, revoked, or otherwise unavailable under 23 § 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the 24 action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth 25 Circuit reviewed a district court’s screening stage dismissal of a prisoner civil rights action after 26 finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128 27 F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than 28 simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the 1 plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the 2 Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded 3 that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes” 4 provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant 5 an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated 6 that the appellant “may resume this appeal upon prepaying the filing fee.” 7 This conclusion is consistent with the conclusions reached in at least three other 8 circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status 9 under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically 10 held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because 11 “[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original). 12 The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th 13 Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002). 14 The Court agrees with Defendants that Plaintiff has had three or more prior action 15 dismissed for failure to state a claim. In fact, courts in at least two of Plaintiff’s prior cases have 16 either denied or revoked in forma pauperis status due to three or more “strikes.” See Ransom v. 17 Johnson, 1:05-cv-0086-OWW-GSA-P; Ransom v. Martinez, 1:07-cv-1511-AWI-P. The strikes 18 discussed in these cases apply as strikes in the current case. 19 The only issue remaining is whether Plaintiff can escape the PLRA’s “three 20 strikes” provision because he has alleged in this case an imminent danger of serious physical 21 injury that existed at the time the action was filed. The Court also agrees with Defendants that 22 Plaintiff’s allegations in this case of a 17-day denial of Kosher meals which ended months before 23 the case was filed does not satisfy the imminent danger exception. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Based on the foregoing, the undersigned hereby orders and recommends as 2 || follows: 3 1. It is RECOMMENDED that Defendants’ unopposed motion to revoke 4 | Plaintiff's in forma pauperis status, ECF No. 43, be GRANTED and that this action be 5 || DISMISSED without prejudice to refiling upon prepayment of fees therefor. 6 2. It is ORDERED that Plaintiff's pending motions, ECF Nos. 40, 46, 50, and 7 || 51, are DENIED as moot and without prejudice to renewal should these findings and 8 || recommendations not be adopted by the District Judge. 9 These findings and recommendations are submitted to the United States District 10 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 11 | after being served with these findings and recommendations, any party may file written objections 12 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 13 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 14 Yist, 951 F.2d 1153 (9th Cir. 1991). 15 16 || Dated: November 6, 2023 = SS GC M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28